Guivalu v The State [2003] FJHC 84; HAA0102J.2002S (7 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0102 OF 2002S

Between:

JOSATEKI GUIVALU
Appellant

And:

THE STATE
Respondent

Hearing: 31st January 2003
Judgment: 7th February 2003

Counsel: Appellant in Person
Ms L. Chandra for State

JUDGMENT

The Appellant appeals against the sentence of 5 years imprisonment imposed by the Suva Magistrates Court on 30th September 2002 in respect of the following charge:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) of the Dangerous Drugs Act 114 as amended by Decree Number 4 of 1990 and Amendment Decree Number of 1991.

Particulars of Offence

JOSATEKI GUIVALU, on the 28th day of September, 2002 at Lami in the Central Division was found in possession of 750.9 grams of dangerous drugs namely Indian Hemp.

The Appellant pleaded guilty to this offence. The facts were that on 28th September 2002, the police searched the Appellant’s house in Lami and found 5 rolls of leaves in a bottle. They sent the leaves to the Government Analyst and received a report that they were Indian hemp weighing 750.9 grams. The Appellant admitted these facts and 6 previous convictions. The convictions include robbery with violence and larceny.

Sentence was delivered on 14th October 2002. The learned Magistrate said that the minimum sentence he could impose under the Dangerous Drugs Act was 5 years imprisonment. The Appellant was sentenced to 5 years imprisonment.

The State agrees that the learned Magistrate erred in finding that there was a minimum mandatory sentence for this offence, but said that for the amount of drugs found, the Appellant should be given in excess of 3 years imprisonment.

In his submissions, the Appellant submitted that his sentence was harsh and excessive and contrary to the High Court decision in Harris Ramswaroop Crim. App. No. HAA0014 of 2001L.

In that case Prakash J found that all minimum mandatory sentences imposed by the Dangerous Drugs Act as amended by Decree (No. 4 of 1990 and No. 1 of 1991) were invalid and in breach of the Constitution. In particular, they were in breach of the right to equality before the law, the right to freedom from disproportionately severe sentence, the right to an independent judiciary and in breach of the doctrine of the separation of powers.

In that case the appellant had been found in possession of 524.6 grams of Indian hemp. Prakash J imposed a sentence of 2½ years imprisonment. There was no evidence of dealing or trafficking. In this case, the amount of drugs is considerably more. The Appellant says he uses the drugs himself. There is no evidence of sale or dealing although the Appellant admits that he is a habitual user.

In mitigation he said that he was the sole bread-winner of his family and that he had two small children. Clearly this Appellant should be given a heavier sentence than the appellant in Harris Ramswaroop. He is not a young offender, nor is he a first offender, deserving particularly leniency.

In the circumstances I consider that a sentence of 3 years and 6 months an appropriate sentence given the amount of drugs found, and the circumstances of the offending. I have taken into account his guilty plea and his mitigation.

This appeal succeeds. The sentence is reduced to 3½ years imprisonment.

Nazhat Shameem
JUDGE

At Suva
7th February 2003